NICON INSURANCE v. NNPC (2020)

NICON INSURANCE v. NNPC

(2020)LCN/14156(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/A/231/2015

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

NICON INSURANCE PLC APPELANT(S)

And

NIGERIAN NATIONAL PETROLEUM CORPORATION RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is trite law that issue of jurisdiction is very fundamental in adjudication in that if a Court or Tribunal possesses no vires any matter or cause entertained or adjudicated upon will be treated as a complete nullity. It must also be stated that failure or omission to institute proceedings or action or suit by a party whose rights and obligations are affected by an adversary within the time stipulated by a statute or the Constitution will render any action or suit commenced or instituted thereafter null and void thereby rendering the Court siesed of the matter impotent to hear and determine the suit or action. See ROE LTD V. UNIVERSITY OF NIGERIA (2018) 1 SC 135 AT 151 per GALINJE, JSC who said:-
“The issue of whether or not on action is filed within the time stipulated by law goes to the jurisdiction of the Court. Any omission to institute proceedings within the statutory time limit deprives the Court of jurisdiction to heir and determine the matter. Jurisdiction being the soul of adjudication, can be raised at any stage of proceedings and even at the Supreme Court for the first time.”
An action must therefore be initiated in full compliance with due process otherwise the action or suit will be liable to be struck out for incompetence. See:-
1. PRINCESS STELLA ADAEZE ODUAH V. SENATOR MARGERY CHUBA OKADIGBO & ORS (2019) 3 NWLR (PART 1660) 433 AT 460 B – F per KEKERE-EKUN, JSC who said:-
“There is no doubt that jurisdiction is a threshold matter. It is the bedrock of any judicial proceeding. It is the legal capacity, power or authority to adjudicate vested in a Court by the Constitution or statute which created it. The absence of jurisdiction or any defect therein renders the entire proceedings a nullity, no matter how well conducted. The fundamental essence of jurisdiction was eloquently captured by His Lordship, Bello, CJN in Utih V. Onoyivwe (1991) SC (Pt. 1) 65 @ 96 – 97; (1991) 1 NWLR (Pt.166) 166, where he stated thus:
“Jurisdiction is the blood that gives life to the survival of an action in o Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing bleed into it would be an abortive exercise.”
In the locus classicus, Madukolu V. Nkemdilim (1962) 2 SCNLR 341, it was held that a Court is competent to adjudicate when:
I. it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or the other; and
II. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
III. the case comes before the Court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
My defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided: the defect is extrinsic to the adjudication.”
See also: Skenconsult (Nig) Ltd V. Ukey (1981) 1 S.C. 6 at 62: Inakoju V. Adeleke (2007) 4 NWLR (Pt. 102) 427 at 588 F; Dingyadi V. INEC (2010) LPELR-40142 (SC), (2010) (No 1) 18 NWLR (Pt. 1224) 1; NNPC V. Clifco (Nig) Ltd (2011) 4 SC (Pt. 1) 108, (2011) 10 NWLR (Pt. 1255) 2 9: Shitta-Bey V. A. -G., Federation & Anor (1998) 10 NWLR (Pt. 570) 392.”

AGIP (NIGERIA) LTD V. AGIP PETROLI INTERNATIONAL & ORS (2010) 5 NWLR (PART 1187) 348 AT 419 TO 420 A – B per ADEKEYE, JSC who said:-
“More importantly is that where a statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent. In the case of Obasanjo V. Yusuf (2004) 9 NWLR (PT. 877) p. 144 at p. 221 the Court decided that:
“It is elementary law that a Plaintiff in the commencement of an action must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.” PER IGE, J.C.A.

THE IMPORTANCE OF A VERIFYING AFFIDAVIT

It is evident from the above Rule that a verifying Affidavit is designed to confirm and bear testimony to the truth of the averments or facts contained in the Petition. Its purpose is to authenticate the facts therein as the truth and sustainable facts. It is a statement made under oath to confirm the truth of statement in a document and as in this case the facts stated in the Petition. See NIGERIAN COMMUNICATION COMMISSION V. MOTOPHONE LTD & ANOR (2019) 14 NWLR (PT. 1691) 1 AT 28 A – D per ABBA AJI, JSC who said:-
“This is a genre of proceeding that is fought on affidavit evidence and because verifying affidavit evidence is used; it cannot be said that there was fundamental defect in the process. The name verifying and supporting affidavit is a matter of nomenclature and the adjectival use of “supporting” and “verifying” does not garble or distort its substance and intent. All that matters is that it is a proceeding fought by affidavit evidence. It is to be noted that evidence by affidavit is a form of documentary evidence which is prima facie admissible. It is entitled to be given adequate weight where it is concrete, cogent, credible and there is no conflict or after the conflict has been resolved from appropriate oral or documentary evidence. Supporting or verifying affidavit evidence has every equal weight as pleadings or oral testimony taken except where there are contradictions in the affidavit or documentary evidence. Thus, documentary evidence can suffice to adequately arid Judiciously adjudicate on the case of the parties herein. The verifying affidavit is the statutory and procedural document to be filed and attached to the originating motion and qualified as affidavit evidence and all other documents attached thereto cannot render it defective.” PER IGE, J.C.A.

THE ROLE OF A DIRECTOR OR SECRETARY OR PRINCIPAL OFFICER IN A COMPANY

A Director or Secretary or Principal Officer is a servant or working hands of a Company. There may be many of them in different category or status of a Director, Secretary or Principal Officer. An insight into this can be found in the following cases:-
1. TRENCO (NIG) LTD V. AFRICAN REAL ESTATE AND INVESTMENT COMPANY LTD & ANOR (1978) LPELR – 3264 SC 1 AT PAGES 16 – 17 per SOWEMIMO, JSC who said:-
“But a company, although a legal person is an artificial one which can only act through its human agents and officers. Viscount Haldane L. C. in LENNARD CARRYING CO. V. ASIATIC PETROLEUM CO. LTD (1915) A.C. 705 stated:-
“My Lords, a corporation is an abstraction. It has no mind of its own any more that it has a body of its own; its active and directing will must consequently be sought in the person of somebody who far some purpose may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.” This human personification of a company was clearly brought out by Denning L. J. in BOLTON ENGINEERING CO. LTD V. GRAHAM AND SONS 1 Q.B. 159 AT PA4E 172-173 where he said:
“A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of those managers is the state of mind of the Company and Is treated as such.”
2. AMINU MUSA OYEBANJI V. THE STATE (2015) 14 NWLR (PART 1479) 270 AT 291 G – H TO 292 A per GALADINMA, JSC who said:-
“It is in Bolton Engineering Co. Ltd. V. Graham & Sons (1957) 1 QB 159 at 172 – 173 that Denning U’. brought out clearly the human personification of a company where he stated thus:
“A company may, in many ways, be liken to a human body. It has brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will.
Others are directors and mangers who represent the directing mind and will of the company and control what it does. The state of mind of the company of these mangers is the state of mind of the company and is treated by law as such.” PER IGE, J.C.A.

WHO IS AN OFFICER OF A COMPANY?

WHO IS AN OFFICER?
I refer to the meaning or connotation as described in Black’s Law Dictionary 10th Edition page 1257 which defines the word ‘officer’ as follows:-
“1. someone who holds an office of trust, authority, or command. In public affairs, the term refers esp. to a person holding public office under a National, State or Local Government, and authorized by that Government to exercise some specific function. In corporate law, the term refers to a person elected or appointed by the board of directors to manage the daily operations of a Corporation such as CEO, President, Secretary or treasurer.”
Much as one does not approve any tardiness in preparation of processes in litigation, the fact that the Deponent did not refer to herself as a Principal Officer will not make the verifying Affidavit in Support of the Petition defective or incompetent and to my mind cannot render the Petition incompetent. The verifying Affidavit is not in breach of Rule 18(1) of Companies Winding Up Rules. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): On 20th June, 2011 the Respondent as Petitioner prayed the Court below for the winding up of the Appellant Paragraph 1 – 28 of the said Petition is as follows:-
“PETITION
To: His Lordship the Judge of the Federal High Court:
THE HUMBLE PETITION of Nigerian National Petroleum Corporation shows as follows:
1. Your Petitioner is a statutory corporation established by the Nigerian National Petroleum Corporation Act 1977 (Act number 33 of 1977) Chapter 123 Laws of the Federation 2004 (lithe NNPC Act), and empowered to engage in all commercial activities relating to the petroleum industry with its corporate headquarters at Herbert Macaulay Way, Central Business District, Abuja.
2. The Respondent was originally a statutory corporation by virtue of the National Insurance Corporation of Nigeria Act 1969 (Act Number 22 of 1969), but is now, following its privatization, a public limited company. The Respondent is an insurance company and has its corporate headquarters at Plot 242 Muhammadu Buhari Way, Central Business District, Abuja.
3. The nominal capital of the company is

N1,000,000,000.00 divided into 5,000,000 shares of N200.00 each. The amount of the capital paid up is N1,000,000,000.00
4. The objects for which the company was established are as follows:-
i. To acquire, take over and carry on in whole or in part as a going concern the assets, liabilities and other business whatsoever at any time carried on by the National Insurance Corporation of Nigeria, a statutory corporation established NICON ACT, Cap 263, LFN 1990;
ii. To undertake and carry on the business of insurance underwriting in all its classes and categories (including but not limited to primary property and casualty insurance, primary life insurance, facultative insurance, retro – insurance , counter- insurance and reinsurance);
iii. To carry on business as insurance brokers and agents and underwriting agents in all classes of insurance and as insurance advisers, pensions advisers, and consultants assessors, valuers surveyors and adjusters and mortgage brokers and to undertake the provision of hire purchase and credit sale finance and to act as factors;
iv. And other objects set forth in the Memorandum and Articles of Association thereof.

By several policies of insurance made on diverse dates between your Petitioner and the Respondent in consideration of premiums paid or to be paid and upon the terms and conditions contained in them, the Respondent insured your Petitioner against various losses. The Petitioner will at the trial rely on the insurance policies.
6. In the case of policies taken out by your Petitioner from the Respondent for the benefit of its employees, your Petitioner was and remained the insured, and settlement of claims in the event of an insured risk occurring with respect of any such employee is made to your Petitioner and never to the employee directly. The petitioner will at the trial rely on Claim Number GPA/046/2006A on Policy Number GPA/3504/ABJ in respect of the Petitioner’s employee R. &. Okorodudu wherein the respondents agreed to settle the claims from your Petitioner in the sum of N315,340.02, the Respondent‘s letter of 22nd November, 2006 in that connection, and your Petitioner ‘s Discharge Form to the Respondent endorsed on 5th December, 2006 and similar claims settled in like manner of employees who were injured or

killed by means of an insured risk.
7. The course of conduct and transactions between the Petitioner and the Respondent was such that the Petitioner would continue to enjoy the benefits of the Respondent’s insurance cover notwithstanding late or partial or installment payments of premiums, provided that at all times it was understood that any outstanding amounts on premiums were owing and would be paid.
8. The Petitioner will contend at trial that the consideration moving from it to the Respondent for the Respondent’s forbearance on timely payments of premiums was the Petitioner’s (implied) promise to settle all amounts outstanding on premiums within a reasonable time.
9. By letter of 2nd January, 2003 the Respondent reassured your Petitioner that it remained covered by insurance under the Respondent’s contract from midnight of 1st January, 2003, “subject to (later) payment of premium”. The Petitioner will rely on a copy of this letter.
10. By the date of the Respondent’s letter referred to in paragraph 9 above, your Petitioner had not paid its premium for that year, as evidenced by the Respondent’s later

letter of 22nd January, 2003. The Petitioner will rely at trial on a copy of this letter.
11. In its letter of 24th February, 2005, the Respondent demanded from your Petitioner oil and aviation, insurance premiums for the year 2005 in the respective sums of US$38,306,336.00 (Thirty-Eight Million, Three Hundred and Six Thousand, Three Hundred and Thirty-Six United States Dollars) and US$522,680.46 (Five Hundred and Twenty-Two Thousand, Six Hundred and Eighty United States Dollars, Forty-Six cents). The Petitioner will rely on a copy of this letter.
12. On or about 1st April, 2005, your Petitioner made the premium payments referred to in paragraph 11 above; the Respondent accepted the payments, issued a receipt for them, and thanked the Petitioner for its “continued patronage”. The Petitioner will rely at trial on: –
a. A copy of the relevant Remittance Advice dated 1st April 2005,
b. A copy of the Respondent ‘s letter of 28th April, 2005 acknowledging and thanking the Petitioner for the payments, and
c. A copy of the pertinent receipt dated 11th April, 2005.
13. The premium payments referred to in paragraph 12 above were tardy.

The parties have had a good and substantial business relationship according to agreed practices with regard to the various policies over many years in respect of which large premiums were paid to the Respondent by the Petitioner. The Petitioner shall rely on the schedule of premium payments at the hearing of this action.
15. The Petitioner suffered losses incurred by the Respondent and duly notified the Respondent of the events as per the terms of their policies.
16. On the dates and at the times of the losses and damage hereinafter mentioned the Petitioner was interested in the assets and goods to the extent of the amounts so insured respectively.
17. On the said dates while the policies were in force the assets and goods of the Petitioner were damaged and the Petitioner suffered loss and damage:
Particulars of Damage and Outstanding Claims
OIL: CLAIMS
OIL ASSETS:
A. JV AND DIRECT OIL CLAIMS
1. Fire incident at Oso RG Platform LPA Turbine on 209/04/93 NNPC/MOBIL JV $979,776.37
2. Kwale 13 & 16 Well Blowout on 11/10/23 NNPC/NAOC JV $405,345.82
3. Fire at Oso E Platform on 18/05/05 NNPC/MOBIL

JV $357.527.34
4. Kwale 7 Production Well Underground Blowout on 11.10.94 NNPC/NAOC JV. $13,294.20
5. Damage to Tank 667 at Quo Iboe Terminal on 5/9/99. $96,346.72
6. Damage to 16 Gas Pipeline at Escravos Freighter by CESWESTOE on 16/05/02 -NNPC/CHEVRON JV $26,645.09
7. Fire incident at Abaji pump Station (PPMC) on 14/8/96 $27/625.00
8. Steam Turbine Generol WRPC on 22/12/2000 $82,608.20
9. Damager to Ekpe A gas Line on 7/10/01
10. NNPC/MOBIL JV $1,320,000.00
Total 1: $3,309,168.74
B. RETAIL OUTLET CLAIMS
1 . Vehicle No. XM 251 JJJ at Kwara on 11/10/06
2. Vehicle No. XD 400 TRN on 11/10/06 N122,164.97
3. Accident Involving Truck No. PL 8559 JE 03/10/06 N115,489.61
4. Vehicle No. XM 825 EKY near Ajaokutata 06/1212/06 N211,750.18
5. Accident involving Vehicles No. BX 843 AME 20/12/06 N211,750.18
6. Truck No. XB680 JJN AT Okunga 26/06/06 N211, 375.00
7. Vehicle No. XB 389 SHA AT Ankpa Otukpo 28/12/06 N211, 375.00
8. Fire Incident at Gusau Mega Station 30/07/08 N11,375,000.00
9. Tanker with No. 145 ENU 20/01/08 N204,023.73
10. Tanker No. XA 296 &SH 06/01/06

N204,023.73
11. Tanker No. XA 444 ALK 26/03/06 N223,685.00
12. Truck No. XA 205 GMB 17/08/06 N28,133.76
13. Truck No. XA 610 SHA 15/09/06 N204,023.75
14. Truck No. XB 791 KUJ 19/07/06 N310,300.25
15. Truck No. 353 HNG 02/08/06 N181,300.00
16. Truck No. XA 296 GSH 06/01/06 N204,023.73
SUBTOTAL N14,019,733.28
(NON-OIL CLAIMS (hereunder attached in Schedule 1)
C. : LIFE ASSURANCE
17. Group Life Assurance N406,062,683.25
b. PERSONAL ACCIDENT
18. Group Personal Accident N6,062,145.31
E. FIRE
19. Fire N735,112,326.14
F MOTOR
20. Motor N10,626,526.60
Sub Total 3 – i.e. 17, 18, 19 and 20 N1,157,863,681.30
GRAND TOTAL for 2 and 3 N1,717,883.414.34
18. In the said meeting of 27th April, 2005, the Plaintiff requested how the claims will be met by the Defendant, and the Executive Director (Technical) of the Defendant stated that settlement will be made as follows:
a. That all 2001 outstanding claims will be cleared by mid June, 2005.
b That proper costing will be done before mid June after receiving data from the Plaintiff.
c. That the sum of N50 Million will be paid

every month to clear the remaining outstanding claims for the next 15 months. Copy of the minutes of meeting is annexed and attached as Exhibit “A”.
19. On the 2nd of August, 2007, the Petitioner instructed its Solicitors Messrs Aliyu Ahmed & Associates to issue a demand letter dated 24th August, 2007 to the Respondent demanding all outstanding claims which had been due and giving notice of its intention to sue the Respondent if it failed to settle the Claims. The said letter is annexed and attached as Exhibit “B”.
20. In March 2008, a meeting in respect of reconciliation of outstanding oil claims was held between your Petitioner and the Respondents management. The Respondent admitted the reconciled sums in its letter doted 6th March, 2008. The Respondent’s said letter is hereby attached and attached as Exhibit “C”.
21. As a result of persistent non-remittance of the non-oil claims, your Petitioner met with the Management of the Respondent in April 2008. The Petitioner sent the copy of the minutes of the meeting and the Respondent wrote in its letter dated 2nd May, 2008 correcting the contents of the minutes Copy of the said

Respondents Letter and Unsigned Minutes are hereby annexed as Exhibit “D1” and “D2”.
22. On the 16th April, 2008 another meeting was held at the Premises of the Petitioner between the Management of the Petitioner and the Respondent where by parties agreed on a reconciled figure of non-Oil claims owed by Petitioner by the Respondent. The Petitioner will at the trial rely on the correspondence in relation thereto and the signed minutes of meeting between the said representative of the Petitioner and the Respondent which hereby attached as Exhibit “E”.
23. The Petitioner avers that on the 26th June, 2008, the Respondent further wrote to the Petitioner acknowledging the meeting of 16th April, 2008 and in the said letter, the Respondent assured the Petitioner of its intention of reducing its liabilities to nil in the nearest future and to conform to the terms of settlement. The said letter is annexed arid attached as Exhibit “F”.
24. In August 2008, the Petitioner and the Respondent had another meeting wherein the Respondent further promised to pay its indebtedness and stated in its letter dated 28th August, 2008 that a new care investor of the

Respondent has injected the sum of N17.38 Billion in the Respondent Company and promised to pay on resolve the lingering debt in weeks rather than months. The letter is annexed and attached as Exhibit “G”.
25. The Petitioner acknowledged receipt of the reconciled figures of the Oil claims presented to it by the Respondent in its letter dated 12th March, 2008 annexed hereto as Exhibit G and the Petitioner requested to know whether any money or monies have been paid to the Respondent directly by any local underwriters but Respondent neglected to inform or notify the Petitioner of any of such payments. Receipts of payments to the Respondent will be relied upon at the trial of this action.
26. The first demand letter sent by your Petitioner was on the 24th of August, 2007, and over 30 days time has elapsed and the Respondent has failed/neglected to pay or satisfy its indebtedness.
27. The respondent is insolvent and unable to pay its debts to your petitioner in the sum of N1,169, 882,757.52k and $3,320,000.00.
28. In the circumstances, it is just and equitable that the company be wound up.
Your petitioner therefore humbly prays the

following:-
1 . That Nicon Insurance Plc be wound up by the order of the Court, under the provisions of the Companies and Allied Matters Act 1990.
2. Or that such other orders may be made in the premises as to the Court shall seem just.”

By its motion on notice dated 13th September, 2011 and filed on 14th September, 2011, the Appellant as Respondent at the lower Court prayed for an Order;
“(i) Dismissing or striking out this Petition.
FURTHER TAKE NOTICE that the grounds of this application are as follows:-
(i) The Petition has not been verified as required by Paragraph 18 of the Companies Winding-Up Rules.
(ii) The condition precedent to the competence of a Petition founded on inability to pay indebtedness was not complied with.
(iii) The alleged indebtedness predicating the Petition is hotly disputed by the Respondent on several grounds including improper Constitution of the petition, non existence of insurance contract between the Petitioner and the Respondent, effect of limitation law on the claims, the combined effect of which is to render the Petition incompetent.
(iv) The Court has no jurisdiction to

entertain the Petition.
TAKE FURTHER NOTICE that at the hearing of this application the respondent will rely on the affidavit in support of this motion, the Petition together with all the attached documents and the affidavit in opposition to the Petition.”

The application was duly heard and the learned trial Judge gave considered Ruling on the application on 24th day of April, 2015 wherein he found against the Appellant as follows:-
“After a careful perusal of the submissions of Counsel by the Court, the Court opines the Nicon Insurance Plc, even though has been privatized is still governed by the NICON Act. The Nicon Insurance Corporation with which the Petitioner entered various Insurance Policies which was governed by the NICON Act.
This is seen in the paragraph 2 of the Petitioner’s Petition dated 20/6/2011.
The said Act has not been repealed even after the privatization of NICON Insurance Plc therefore it is still extant.
The Petitioner submitted earlier that Nicon Insurance Plc is one and same as Nicon Insurance Corporation therefore has inherited all assets and liabilities. For the Petitioner’s Counsel to submit

the NICON ACT does not apply to NICON INSURANCE PLC amounts to approbation and reprobation in law.
See: Ugwuanyi V. NICON PLC 2013 11 NWLR (Part 13(6)) pg 134.
This ground is also resolved against the Respondents whilst the Court has subject matter jurisdiction over the claims by virtue of Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999.
In conclusion, from the foregoing paragraphs of this ruling this preliminary objection fails and is dismissed. Whilst this petition is hereby fixed for hearing of the motion on notice to advertise petition dated 20/6/11 filed by petitioner ‘s Counsel, Kayode Sofola, SAN.
There shall be costs of N10,000.00 awarded in favour of the Petitioner to be paid by Respondent.
No Order as to Costs.”

The Appellant was dissatisfied with the Ruling and has by her Amended Notice of Appeal dated 28th September, 2015 and filed on 30th September, 2015 and deemed filed on 17th February, 2020 appealed to this Court on eight (8) grounds of appeal which with their particulars are as follows:-
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:

Whole Decision.
GROUNDS OF APPEAL
i. The learned trial judge erred in law when he held that there was no requirement to serve the appellant a pre-action notice prior to instituting the petition
Particulars of Error in Law
a. Jurisdiction is the vires of the Court to adjudicate issue before it.
b. To activate the jurisdiction of the Court, mandatory steps must be taken by the Petitioner/Respondent.
c. Failure of the petitioner to take those mandatory steps would render the whole suit a nullity as decided in Madukolu V. Nkemdilim.
d. By virtue of Section 26 of the National Insurance Corporation of Nigeria Act 2004, the petitioner is mandatorily required to deliver to the appellant a pre-action notice before a suit or action can be brought against her.
e . The petitioner admitted that no pre-action notice was served or delivered to the appellant prior to the action.
f. The Court is therefore robbed of jurisdiction to adjudicate on the suit for failure to comply with the mandatory provision of law.
ii. The learned trial judge erred in law and fact when he held that the National Insurance Corporation of Nigeria Act, 2004

does not apply to the respondent/appellant as it is now a private entity.
Particulars of errors in law
a. An Act made by the National Assembly is enforceable until repealed by the National Assembly.
b. There is no dispute that the appellant is a creation of the National Insurance Corporation of Nigeria (NICON) Act, 2004.
C . The NICON Act, 2004 has not been repealed so the NICON Act applies.
d. The fact that the respondent/appellant may now be a private entity does not repeal the NICON Act.
iii . The learned trial judge erred in law when he held that the arguments of the appellant on the non-compliance of the respondent’s verifying affidavit to the petition with Rule 18 of the Companies Winding Up Rules was untenable and overruled same.
Particulars of errors in law
a. The learned trial judge did not give proper consideration to the arguments of the appellant as it is clear that the verifying affidavit did not comply with Paragraph 18 of the Companies Winding Up Rules.
b . Rather than consider whether the verifying affidavit in support of the petition was made by a director, secretary or other principal officer

of the respondent, as prescribed in Paragraph 18 of the Companies Winding Up Rules, the learned trial judge preferred to rely on the opinion expressed in Palmers Company Law, 21st Century Edn.
c. What the learned trial judge did amounted to rewriting the provisions of Paragraph 18 of the Companies Winding Up rules by reading into it what is not there.
iv. The learned trial judge erred in law when he held that the verifying affidavit was properly filed within the meaning of Paragraph 18(b) of the Companies Winding Up Rules and dismissed the objection of the appellant against the said verifying affidavit.
Particulars of errors in law
a. As prescribed by Paragraph 18(b) of the Companies Winding Up Rules, the verifying affidavit in support of a petition is required to be filed within four days
b. In construing the provision of Paragraph 18(b) of the Rules, the learned trial judge erroneously held that the four days beings to count FROM the time the petition is presented to the registry.
c. In construing a statute or rule of Court, a trial judge has no power or jurisdiction to rewrite or substitute his own words into the statute or

rule of Court but interpret same as drafted.
d. The incompetent verifying affidavit meant that there was no evidence in support of the petition within the meaning of Paragraph 18 of the Companies Winding Up Rules.
v. The learned trial judge erred in law when he held that there was a valid letter of demand from the respondent to the appellant as prescribed by Section 409 of the Companies and Allied Matters Act.
Particulars of errors in law
(a) Contrary to the holding of the learned trial judge and the provisions of Section 409 of the Companies and Allied Matters Act, there was no valid letter of demand from the respondent to the appellant for the alleged debt on which the petition is based.
(b) The learned trial judge failed to give proper consideration to the issue and even went to consider a document that did not form part of the petition at the time when the challenge to the competence of the petition was challenged by the appellant.
vi. The learned trial judge erred in law when he held the alleged debt in this case had been admitted by appellant.
Particulars of errors in law
(a) The learned trial judge failed to

give proper consideration to the cases made by the appellant and that was why the Court held erroneously that there was an admission of the alleged debt by the appellant.
(b) The totality of Exhibits E, F and G, the learned trial judge relied on did not amount to an admission of the alleged debt having regard to the various grounds on which the appellant disputed the alleged debt.
vii. The learned trial judge erred in law when he resolved against the appellant the issues raised by the appellant to the effect that the claims of the respondent were statute barred by Section 26(1) of the NICON Act.
Particulars of errors in law
(a) A trial judge has a duty to give proper consideration to an issue raised by the parties before arriving at a decision.
(b) The learned trial judge in this case merely referred to the arguments of the parties and then proceeded to resolve the issue against the appellant without considering whether the issue was made out on the arguments.
(viii) The learned trial judge erred in law when he failed to consider the effect on the petition of the issue raised by the appellant concerning the illegality of the alleged

contract of insurance on which the respondent based its claims.
Particulars of errors in law
(a) A trial Court to pronounce on the issues raised by the parties.
(b) A failure by a trial judge to consider an issue raised by a party amounts to a denial of fair hearing which should vitiate the decision of the trial judge.
(c) The issue of illegality raised by the appellant bordered on the non-payment of premiums for the alleged policy of insurance which fact was expressly admitted by the respondent in its petition
(d) Failure to pay premium at the time of entering into an insurance contract renders the purported insurance contract illegal as decided in several cases.
(e) If the learned trial judge had considered this issue, he would inevitably have had to dismiss the petition.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. An order allowing this appeal.
ii. An order setting aside the decision of the trial Court.
iii. An order dismissing/striking out the winding-up petition.”

The appeal was heard on 17th February, 2020 when the learned Counsel to the parties adopted their Briefs of Argument.

The learned Counsel to the Appellant AKINSOLA OLUJINMI, ESQ who settled the Appellant’s Brief distilled six (6) issues for determination as follows:-
“3.1 The issues arising in this appeal are as follows: –
i. Whether the trial Court was right in failing to resolve the issue of the failure of the respondent to comply with the provision of Section 26 of the National Insurance Corporation Act before commencing this suit – Covers ground 1.
ii. Whether the trial Court was right in holding that the verifying affidavit of the petitioner/respondent complied with Paragraph 18 of the Companies Winding Up Rules – Covers grounds 3 and 4.
iii. Whether the failure of the respondent to comply with the provision of Section 409 of the Companies and Allied Matters Act before presenting its petition, is not fatal to this Petition covers ground 5.
iv. Whether having regard to the various grounds on which the appellant disputed the alleged debt, the learned trial Judge was right in holding that the appellant had admitted the alleged debt which gave rise to this petition for winding-up-Covers ground 6.
v. Whether the trial Court was right in

resolving against the appellant the issue whether or not the respondent’s claim was not statute barred by Section 26(1) of the NICON Insurance Corporation Act, without giving proper consideration to the issue. Covers ground 7.
vi. Whether the trial Court was right in failing to consider and resolve the effect on this petition of the issue raised by the appellant concerning the illegality of the alleged contract of insurance on which the respondent based its Claims. Covers ground 8.”

The learned Counsel to the Respondent, KOLADE SOFOLA, ESQ who settled the Respondent’s Brief formulated four (4) issues as follows:-
“3.1 We submit the following 4 issues for determination in this appeal:-
a. Whether the trial Court was correct in holding that the Petitioner/Respondent’s verifying affidavit complied with the provisions of Rule 18 of the Company Winding Up Rules:
b. Whether the trial Court was correct to have come to the conclusion that the demand notices sent by the Respondent satisfied the requirement of Section 409 of the Companies and Allied Matters Act;
c. Whether the trial Court was correct to have held that the

Respondent’s insurance claims against the appellant were not statute – barred ; and
d. Whether the contract of insurance between the Appellant and the Respondent was legal and valid as at the time of filing this Petition.“

The appeal will be determined on the issues raised for determination by the Appellant’s learned Counsel. The issues will be taken together.

The learned Counsel to the Appellant started his submission on issue on issue 2 as to whether the Petition complied with Paragraph 18 of the Companies Winding-Up Rules and submitted that the Respondent’s verifying Affidavit does not show that it was made by a Director, Secretary or other principal office of the Petitioner. That there can be no presumption that the Respondent is a Director, Secretary or principal officer. That a principal officer of a company must be one who can pass as the alter ego of the Company. He relied on the case of EKUMA V. SILVER EAGLE SHIPPING AGENCIES LTD (1987) 4 NWLR (PART 65) 472 AT 480.

That such non-disclosure in the Affidavit in Support of the Petition renders the Petition incompetent. He relied on the case of

SPECTRA LTD V. STABILINI VISIONI LTD (1999) 6 NWLR (PART 608) 631 AT 638 A – H. He stated that the learned trial Judge failed to make a distinction between English Winding-Up Rules as amended and Rule 18 of Nigeria’s Companies Winding-Up Rules. That the trial Judge merely held on page 207 of the record that Respondent complied with Rule 18.

That the failure of the verifying Affidavit of the Respondent to comply with Rule of Winding Up Rules is a fundamental vice rendering the Affidavit invalid and the Petition incompetent. That non-compliance with procedure and conditions precedent robs the Court of jurisdiction. He relied on the case of:-
1. DONGTOE V. C.S.C PLATEAU STATE (2001) 9 NWLR (PT. 717) 132 AT 153 A and
2. UGBA V. UGBA (2009) 3 NWLR (PT. 1127) 108 AT 127 B – C.

The second complaint on the verifying Affidavit is that contrary to Paragraph 18 of Companies Winding Up Rules which requires that the verifying Affidavit should be separate from Affidavit in Support of the Petition, the Respondent herein filed the verifying Affidavit on 20/6/2011 along with the Petition.

He submitted that the verifying Affidavit ought to have been filed within

four (4) days after filing of the Petition which it supposed to verify. That instead for lower Court to discountenance the defective Affidavit, he relied on Pennington Company Law 3rd Edition page 68 and upheld Respondents argument. That the said Rule 18 clearly say that the verifying Affidavit shall be sworn to within four days “after” the presentation of the Petition but that lower Court interpreted the rule to mean “verifying affidavit shall be sworn to four days from when the Petition was presented to the registry”. That the word ‘after’ and ‘from’ convey different meanings. That what the Court did amounts to rewriting the Law or the Rule. He relied on the case of AWOLOWO V. SHAGARI & ORS (1999) ALL NCR 120 AT 160 and A.G. ONDO STATE V. A.G.EKITI STATE (2001) 17 NWLR (PART 743) 706.

On issue 3, the learned Counsel to the Appellant stated that the Respondent failed to comply with Section 409 of the Companies and Allied Matters Act by failing to serve the Notice prescribed therein on Appellant.

It is his submission that Section 409 prescribed that where a Petition as herein is based on the ground that a Company is unable to pay its debt, a demand under

the hand of the Creditor requiring the Company to pay the sum so due must have been served on the Company and that the Company has three weeks thereafter to pay the sum. That the purported letter of demand relied upon by the Respondent in this case, Exhibit ‘B’ dated 24/8/2007 page 15 of the record shows on its face that it was written by the Respondent and addressed to the Appellant. That the letter was not issued under the hand of the Petitioner as required by the aforesaid Section 409. That the lower Court just held casually that Exhibit “A” attached to the Further Affidavit suffices. He referred to page 201 of the record.

That as at the time the Petition was filed Exhibit “A” was not the letter of demand relied upon in the Petition and that amount stated in Exhibit “A” is not the same as the amount stated as due and unpaid in the Petition.

Learned Counsel to the Appellant submitted that it is settled that a demand by a Company for payment of debt due to it cannot issue under the hands of its Solicitor but by a Director, Secretary or other authorized officer of the Company who should sign with the common seal of the Creditor Company. That Exhibit

‘B” did not meet the requirement of Section 409 of CAMA. That it is invalid and makes the Petition incompetent. He relied on the case of TATE INDUSTRY PLC V. DEVCOM M. B. LTD (2004) 17 NWLR (PT. 901) 182 AT 220H TO 22 A – H, He urged the Court to strike out the Petition.

On issues 4 and 6, the learned Counsel to the Appellant contended that in so far as the alleged debt in the Petition is being disputed by the Appellant, the some cannot be made the ground for this Winding Up Petition.

That relief sought in a Winding Up Petition is not one for recovery of debt or for breach of contract but rather to wind up the Company for inability to pay its debt. He relied on the cases of:-
2. ORIENTAL AIRLINES LTD V. AIR VIA LTD (1998) 12 NWLR (PT. 577) 271 AT 281 – 282;
2. AIR VIA LTD V. ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) 298 AT 325 C: and
3. HANSA INTERNATIONAL CONSTRUCTION LTD V. MOBIL PRODUCING NIGERIA (1994) 9 NWLR (PT. 366) 87.
to submit that a denial of debt tantamount to disputation of debt as opposed to admitting same. That a Winding Up action is not to be used for trying a common law action for recovery of debt or

breach of contract. That a Winding Up Petition brought to put pressure on a Company to pay a disputed debt will not be allowed. He relied on the case ofUBN LTD V. TROPIC FOODS LTD (1992) 3 NWLR (PT. 228) 231 AT 249 C – D.

That paragraphs 4 – 39 of the Appellants Counter Affidavit show that the alleged debt is being hotly contested or disputed on several grounds.

He notwithstanding submitted that even if the debt existed they are barred by the Statute Limitation relying on OWNERS MV ARABELLA V. NAIC (2008) 11 NWLR (PT 2097) 182. That there is not valid insurance contract between the parties having in mind Sections 37 and 50 of the Insurance Act 199… and 2003.

That in paragraphs 7 – 13 pages 4 and 5 of the record the Respondent agreed it foiled to pay premium due on the alleged contracts subject of the claims in the Petition at the inception of the contracts.

That the Respondent had earlier sued the Appellant in FHC/ABJ/CS/622/2008 claiming the some amount contained in this Petition as debt but that the Respondent later withdrew the case and substituted it with this Petition.

That the lower Court glosed over so many things in its

Ruling and wrongly held that the admission of indebtedness was positively stated in Exhibits E, F and 6 pages 7 to 101, 102 for “F” and 103 for Exhibit “G”. That there is nothing in the said Exhibits E – F and G showing any admission of indebtedness to the Respondent by the Appellant. That the alleged debt was being seriously disputed and thus there could be no admission He relied on the cases of HANSA INTERNATIONAL CONSTRUCTION LTD V. MOBIL PRODUCING NIGERIA (1994) 9 NWLR (PT. 366) 76 AT 87 and ONOCHIE V. ALAN DICK & CO LTD (2003) 11 NWLR (PT. 832) 451 AT 461 D.

He submitted that on a proper consideration of the issues raised above the Petition ought to hove been dismissed by the lower Court. He urged this Court to dismiss the Petition.

On issue 5 as to whether the trial Court was right in resolving the issue as to whether or not the Respondent’s claim was statute barred the learned Counsel to the Appellant referred to pages 21 – 212 of the record to contend that the lower Court did not go beyond reviewing the submissions of Counsel before proceeding to hold on page 213 line 4 that the Court resolved the ground against the Respondent now Appellant.

He referred to his argument under paragraph 6.11 to the effect every Court has a duty to resolve all issues raised and joined by the parties before it. That the trial Judge failed to property consider whether or not the claims of the Respondent are statute barred but instead the lower Court Just simply resolved the issue against the Appellant. He urged the Court to resolve the issue in favour of the Appellant and allow the appeal.

In his own response under issue 1, the Respondent’s learned Counsel KOLADE SOFOLA, ESQ stated that the entire complaint of the Appellant under issue 1 is the failure of the deponent to State whether she is a Principal Officer of the Respondent notwithstanding evidence in the verifying Affidavit containing the name and designation of the deponent as Officer, Group Life Insurance in the Respondents Corporation. That the Deponent to the verifying Affidavit is the Officer of Respondent directly in charge of the Respondent. That she is within the meaning of Rule 18 of the Companies Winding Up Rules a Principal Officer of the Respondent. That the facts and circumstances of this case is different

from the case of EKUMA V. SILVER EAGLE SHIPPING AGENCIES LTD supra relied upon by the Appellant. That the said case has to do with service of originating process on a Company through the Secretary of a Director of the Company. That the contention here by the Appellant is whether the Deponent in the verifying Affidavit could pass as a Principal Officer of the Respondent.

That going by the definition of a Principal Officer of a Company in EKUMA’s case the Deponent can pass as alter ego of the Respondent being the Head of Group Life Insurance of the Respondent with regard to the case of SPECTRA KTD V. STABILINI VISION LTD (1999) 6 NWLR (PART 608) 631 – 638 A – H, Learned Counsel to the Respondent stated that in that case the Deponent did not disclose his capacity but that Deponent to the verifying Affidavit described himself as Officer, Group Life Insurance Division of the Respondent. That all the deponents to a verifying Affidavit under Rule 18 of the Companies Winding Up Rules needs to qualify as a deponent is to be a Director or, Secretary or a Principal Officer in the employment of a Petitioner and have fair knowledge of the issues concerning the

Company. He relied on the case of GRESHAM LIFE ASSURANCE SOCIETY NIG LTD V. REGISTRAR OF COMPANIES (1973) LPELR – SC 1339 and Blacks Law Dictionary.

On whether filing of the verifying Affidavit the same day renders it incompetent, the learned Counsel to the Respondent submitted that filing of the verifying Affidavit on the same date does not render the verifying Affidavit incompetent in that the Affidavit was filed within 4 days after the Petition was presented.

That the Respondent has thus complied with the provision of Rule 18(1) of the Companies Winding Up Rules.

That even If the verifying Affidavit was filed prematurely, it may be regarded as mere irregularity which will not be a ground for asking the Court to strike out the Petition. Reliance was placed on the case of GATEWAY HOLDING LTD V. S. A. M. & LTD (2016) 9 NWLR (PART 1518) 490 – 419 F – B. He urged the Court to hold that the verifying affidavit was valid and it complied with Rule 18 of the Companies Winding Up Rules, 2001.

In response to issue 2 as to whether the learned trial Judge was right in holding that the demand notices sent by the Respondent satisfied the requirement of

Section 409 of the Companies and Allied Matters Act.

Learned Counsel to the Respondent also contended that the case of TATE INDUSTRY PLC V. DEVCOM M. B LTD (2004) 17 NWLR (PT. 901) and AIR VIA LTD V. ORIENTAL AIRLINE LTD (2004) is not on oil fours with the fact in this case. That in the instant case, the demand notice written by Messrs ALIYU AHMED & ASSOCIATES, was a follow up to the earlier demand notices written and delivered by the Respondent through the General Manager Group Life Insurance if the Respondent. That Exhibit ‘A’ found on page 201 of the record of appeal is one of them.

That as rightly pointed out by the learned trial Judge apart from Exhibit ‘A’ there are other demand notices sent to the Appellant by the Respondent. That Exhibit ‘A’ relied upon by the trial Judge is a letter of demand written and delivered to the Appellant by the Respondent even before the letter of 24th August 2007.

That the Respondent is a company within the meaning of Companies and Allied Matters Act and there is a presumption that Companies can only act through their alter egos. That that presupposes that a demand notice in this circumstance can

only be written and delivered by the Respondent through a Director, Secretary or Principal Officer of the Respondent.

That the case of AIR VIA LTD V. ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) 298 where the Supreme Court held that once there is a bona fide denial of the existence of the debt, the Petition ought to be struck out because parties have joined issues which could only be resolved by evidence. Again he submitted that the case is not applicable to the facts of this case. That in that case, the debt was absolutely disputed and Counter Claim was filed. That in this case Appellant admitted the debt in several letters to Respondent. That Exhibit ‘G’ found in page 103 of the records clearly indicates that Appellant acknowledged and admitted the debt. That in a letter of 28/8/2008, the Appellant there is also evidence that the Appellant admitted its indebtedness.

He submitted that express acknowledgment of a debt and failure to settle the debt shows that a case has been made for Winding Up of the debtors Company. He relied on the case of NSTIFMB V. KLIFCO NIGERIA LTD (2010) 13 NWLR (PART 124) 315 AT 329- 330 G – F.

The learned Counsel to the

Respondents relied on Exhibits F and G as admission by the Appellant of indebtedness to the Respondent.

On issue 3 as to whether the trial Court was correct in holding that the Respondent’s insurance claims against the Appellant were not statute barred. That it is not correct to say that the trial Judge did not resolve the issue. That this is enough for the trial Judge to comment and on the issue and makes a finding out of it as it happened in this case relying an the case of EMMANUEL AKPAN V. FRN (2012) (PT. 1281) 403 and STATE V. AJIE (2000) 7 SC (PT. 1) 24.

That limitation law does not extinguish a right to recover a debt where debt is acknowledged by a debtor relying on Section 38 of Limitation Act and on what learned Counsel described as several meetings at several occasions particularly at the meeting of 28/7/2008. He further relied upon the case ofNSITFMB V. KLIFCO NIGERIA LTD (2010) 13 NWLR (PT. 1211) 315. That letters of the Appellant to the Respondent dated 26th June and 28th August 2008 are acknowledgments of the indebtedness.

He submitted that it does not matter that the amount alleged by the Respondent does not tally with what

Appellant believes to be the real amount owed once it is established that there is a certain debt and a demand has been made for settlement of the debt and that the period of 21 days allowed by law has passed without settlement of the debt then ground exists for the Winding Up proceedings.

On issue 4 as to whether the contract of insurance between the Appellant and Respondent was legal and valid as at the time of filing of this Petition the Respondents learned Counsel while referring to issues 4 and 6 wherein it was contended that no valid contract of insurance exists between Appellant and Respondent contended there is a valid insurance contract between the parties.

The learned Counsel to the Respondent submitted that the case of the Respondent is that Appellant is in possession of its indemnity claims of over N4,000,000,000 (Four Billion Naira) part of which should have converted to premium by virtue of the doctrine of appropriation of claim under common law. That the doctrine of appropriation of claim operates automatically without the insured having to instruct the insurers to do so. He relied on CONLEY V. WASHINGTON CASUALTY 93 me 461 (1990).

That this was the agreement of the parties on 16/3/2006 contained on page 145 of the record.

He stated that the Appellant admitted in paragraph 38 of their Counter Affidavit to the Petition and Exhibit NICON 7 – 9 to the Counter Affidavit that the Respondent paid premiums covering the period between 2002 – 2008 totaling N411,135,069.67. He relied on page 126 of the record. Receipt No. 104162 dated 1/6/2004 issued by the Appellant to Respondent for the sum of N794,820,035.78 only as evidence of premium covering the period of 2004.

That what the Appellant is seeking to do is to evade its part of the contract after benefiting immensely from the contract of insurance. He submitted that a party who benefited from an arrangement cannot turn round to claim illegality of the arrangement. He relied on the case of GATEWAY HOLDING LTD V. S.A. & I LTD (2016) 9 NWLR (PT. 1518) 490 – 419.That the fact of the case above tallied with the facts of this case and that the Appellant cannot evade its responsibility relying on the cast of AWOJUGBAGBE LIGHT INDUSTRIES LTD V. CHINUKWE (1995) 5 NWLR (PT. 390) 409.

That Appellant also contended that Respondent had no

contract of insurance with the Appellant but with the defunct NATIONAL INSURANCE CORPORATION OF NIGERIA (NICON) but that the Appellant admitted that it bought and succeeded NICON. That Appellant admitted that it took over and succeeded NICON. That the Appellants took over assets and liabilities of NICON by the SHARE SALE and PURCHASE AGREEMENT. He relied on the case of A. O. AFOLABI & ORS V. WESTERN STEEL WORKERS LIMITED & ORS (2012) 17 NWLR (PT. 1329) 286 – 208. That Appellant did not challenge the findings of facts by the lower Court. He also relied on paragraphs 4, 5, 6 and 7 as containing admissions by the Appellant. He also relied on page 131 of the record. He also relied on Clause 8, 9 of the Share Sale and Purchase Agreement. That Appellant took over all assets and liabilities of defunct NICON including the insurance claims by the Respondent. He urged the Court to dismiss the appeal He urged the Court to hold there is on insurance contract between the Appellant and the Respondent and that Appellant received full payments of premium from the Respondent and cannot turn round to claim illegality to evade responsibility.

The Appellant filed Reply Brief in response to the arguments in Respondents Brief. It states that Rule is/was not complied with in that Respondent found it difficult to bring the Deponent within some Director, Secretary or other Principal Officer of the Respondent.

That Rule 182(1) of the Winding Up Rules cannot assist the case of Respondent in that the said Rule 182(1) deals with irregularities to serve a Petition from being struck out. That the section would have availed the Respondent if it has applied to the lower Court to do the right thing. He relied on the case of MAKINDE & ORS V. ORION ENGINEERING SERVICES (2014) 22099 CA where according to learned Counsel to the Appellant Rule 182(1) was interpreted.

That no law has been cited by Respondent to show what makes it compulsory to convert claims due by insured to premium. That the English cases cited ore not applicable.

That premium is a condition precedent to have a valid insurance contract. He relied on JOMBO UNITED CO LTD V. LEADWAY ASS. LTD (2016) (PT. 1536) PAGE 457.

The zenith of the Appellants learned Counsel submissions is that the lower Court has no jurisdiction to entertain the

Respondent’s Petition for Winding Up of the Appellant on ground of inability to pay its debt. It is trite law that issue of jurisdiction is very fundamental in adjudication in that if a Court or Tribunal possesses no vires any matter or cause entertained or adjudicated upon will be treated as a complete nullity. It must also be stated that failure or omission to institute proceedings or action or suit by a party whose rights and obligations are affected by an adversary within the time stipulated by a statute or the Constitution will render any action or suit commenced or instituted thereafter null and void thereby rendering the Court siesed of the matter impotent to hear and determine the suit or action. See ROE LTD V. UNIVERSITY OF NIGERIA (2018) 1 SC 135 AT 151 per GALINJE, JSC who said:-
“The issue of whether or not on action is filed within the time stipulated by law goes to the jurisdiction of the Court. Any omission to institute proceedings within the statutory time limit deprives the Court of jurisdiction to heir and determine the matter. Jurisdiction being the soul of adjudication, can be raised at any stage of proceedings and even at the

Supreme Court for the first time.”
An action must therefore be initiated in full compliance with due process otherwise the action or suit will be liable to be struck out for incompetence. See:-
1. PRINCESS STELLA ADAEZE ODUAH V. SENATOR MARGERY CHUBA OKADIGBO & ORS (2019) 3 NWLR (PART 1660) 433 AT 460 B – F per KEKERE-EKUN, JSC who said:-
“There is no doubt that jurisdiction is a threshold matter. It is the bedrock of any judicial proceeding. It is the legal capacity, power or authority to adjudicate vested in a Court by the Constitution or statute which created it. The absence of jurisdiction or any defect therein renders the entire proceedings a nullity, no matter how well conducted. The fundamental essence of jurisdiction was eloquently captured by His Lordship, Bello, CJN in Utih V. Onoyivwe (1991) SC (Pt. 1) 65 @ 96 – 97; (1991) 1 NWLR (Pt.166) 166, where he stated thus:
“Jurisdiction is the blood that gives life to the survival of an action in o Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing

bleed into it would be an abortive exercise.”
In the locus classicus, Madukolu V. Nkemdilim (1962) 2 SCNLR 341, it was held that a Court is competent to adjudicate when:
I. it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or the other; and
II. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
III. the case comes before the Court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
My defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided: the defect is extrinsic to the adjudication.”
See also: Skenconsult (Nig) Ltd V. Ukey (1981) 1 S.C. 6 at 62: Inakoju V. Adeleke (2007) 4 NWLR (Pt. 102) 427 at 588 F; Dingyadi V. INEC (2010) LPELR-40142 (SC), (2010) (No 1) 18 NWLR (Pt. 1224) 1; NNPC V. Clifco (Nig) Ltd (2011) 4 SC (Pt. 1) 108, (2011) 10 NWLR (Pt. 1255) 2 9: Shitta-Bey V. A. -G., Federation & Anor (1998) 10 NWLR (Pt. 570) 392.”

AGIP (NIGERIA) LTD V. AGIP PETROLI INTERNATIONAL & ORS (2010) 5 NWLR (PART 1187) 348 AT 419 TO 420 A – B per ADEKEYE, JSC who said:-
“More importantly is that where a statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent. In the case of Obasanjo V. Yusuf (2004) 9 NWLR (PT. 877) p. 144 at p. 221 the Court decided that:
“It is elementary law that a Plaintiff in the commencement of an action must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”

The first major complaints of the Appellant is that the Petition of the Respondent was accompanied by an incompetent verifying Affidavit in flagrant breach of Rule 18 of the Companies Winding Up Rules which provides:-
“Every petition shall be verified by an affidavit referring thereto. Such affidavit shall be made by the Petitioner or by one of the Petitioners, if more than one or in case the petition is presented by a Company some director, secretary or other principal officer thereof, and shall be sworn and

filed within four days after the petition is presented and such affidavit shall be sufficient prima facie evidence of the statements in the petition.”
It is evident from the above Rule that a verifying Affidavit is designed to confirm and bear testimony to the truth of the averments or facts contained in the Petition. Its purpose is to authenticate the facts therein as the truth and sustainable facts. It is a statement made under oath to confirm the truth of statement in a document and as in this case the facts stated in the Petition. See NIGERIAN COMMUNICATION COMMISSION V. MOTOPHONE LTD & ANOR (2019) 14 NWLR (PT. 1691) 1 AT 28 A – D per ABBA AJI, JSC who said:-
“This is a genre of proceeding that is fought on affidavit evidence and because verifying affidavit evidence is used; it cannot be said that there was fundamental defect in the process. The name verifying and supporting affidavit is a matter of nomenclature and the adjectival use of “supporting” and “verifying” does not garble or distort its substance and intent. All that matters is that it is a proceeding fought by affidavit evidence. It is to be noted that evidence by affidavit

is a form of documentary evidence which is prima facie admissible. It is entitled to be given adequate weight where it is concrete, cogent, credible and there is no conflict or after the conflict has been resolved from appropriate oral or documentary evidence. Supporting or verifying affidavit evidence has every equal weight as pleadings or oral testimony taken except where there are contradictions in the affidavit or documentary evidence. Thus, documentary evidence can suffice to adequately arid Judiciously adjudicate on the case of the parties herein. The verifying affidavit is the statutory and procedural document to be filed and attached to the originating motion and qualified as affidavit evidence and all other documents attached thereto cannot render it defective.”
It is the vehement contention of the Appellant that the deponent to the verifying Affidavit is not competent to depose to it in that she is not “a director, secretary or other principal officer of the Petitioner”.
A Director or Secretary or Principal Officer is a servant or working hands of a Company. There may be many of them in different category or status of a Director,

Secretary or Principal Officer. An insight into this can be found in the following cases:-
1. TRENCO (NIG) LTD V. AFRICAN REAL ESTATE AND INVESTMENT COMPANY LTD & ANOR (1978) LPELR – 3264 SC 1 AT PAGES 16 – 17 per SOWEMIMO, JSC who said:-
“But a company, although a legal person is an artificial one which can only act through its human agents and officers. Viscount Haldane L. C. in LENNARD CARRYING CO. V. ASIATIC PETROLEUM CO. LTD (1915) A.C. 705 stated:-
“My Lords, a corporation is an abstraction. It has no mind of its own any more that it has a body of its own; its active and directing will must consequently be sought in the person of somebody who far some purpose may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.” This human personification of a company was clearly brought out by Denning L. J. in BOLTON ENGINEERING CO. LTD V. GRAHAM AND SONS 1 Q.B. 159 AT PA4E 172-173 where he said:
“A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold

the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of those managers is the state of mind of the Company and Is treated as such.”
2. AMINU MUSA OYEBANJI V. THE STATE (2015) 14 NWLR (PART 1479) 270 AT 291 G – H TO 292 A per GALADINMA, JSC who said:-
“It is in Bolton Engineering Co. Ltd. V. Graham & Sons (1957) 1 QB 159 at 172 – 173 that Denning U’. brought out clearly the human personification of a company where he stated thus:
“A company may, in many ways, be liken to a human body. It has brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will.
Others are directors and mangers

who represent the directing mind and will of the company and control what it does. The state of mind of the company of these mangers is the state of mind of the company and is treated by law as such.”
The impugned verifying Affidavit contained on page 11 of the record of appeal reads:-
“I, Obayi Patience Nkem, Nigerian Citizen of Herbert Macaulay Way; Central Business District, Abuja do hereby made oath and state as follows:
1. That I am Officer, Group Life Insurance division of Nigerian National Petroleum Corporation the Petitioner in the above matter.
2. I have been concerned in this matter in such capacity and are duly authorised by the said Petitioner to make this affidavit on its behalf.
3. Such of the statements in the Petition now produced and shown to me marked A as relates to the act and deeds of the said Petitioner are true and such of the statements as act and deeds of any other person or persons I believe to be true.”
To the Appellant the above verifying Affidavit cannot pass as that of director, secretary or any other principal officer of the Respondent hence it is defective and it is incurable thereby

rendering the Petition incompetent.
The Respondent argued the contrary and equally strongly contended that the Deponent falls into the category of “the principal officer” of the Respondent.
WHO IS AN OFFICER?
I refer to the meaning or connotation as described in Black’s Law Dictionary 10th Edition page 1257 which defines the word ‘officer’ as follows:-
“1. someone who holds an office of trust, authority, or command. In public affairs, the term refers esp. to a person holding public office under a National, State or Local Government, and authorized by that Government to exercise some specific function. In corporate law, the term refers to a person elected or appointed by the board of directors to manage the daily operations of a Corporation such as CEO, President, Secretary or treasurer.”
Much as one does not approve any tardiness in preparation of processes in litigation, the fact that the Deponent did not refer to herself as a Principal Officer will not make the verifying Affidavit in Support of the Petition defective or incompetent and to my mind cannot render the Petition incompetent. The verifying Affidavit is not in breach of

Rule 18(1) of Companies Winding Up Rules.

The other complaint against the verifying Affidavit is that it was filed the same day as the Petition itself instead of being filed within four days after the presentation of the Winding Up Petition. I am of the firm view that filing of a verifying Affidavit along with the Petition is an anomaly that cannot vitiate the Petition filed. It is better than filing the verifying Affidavit after outside the four days prescribed. The Appellant has not shown what miscarriage of justice he has suffered as a result of the irregularity in the filing of the verifying Affidavit earlier. What took place is an irregularity which did not affect the validity of the Petition or the filing of the Affidavit. It can be saved under Rule 182 of the Winding Up Rules which provides:-
“Rule 182(1) No proceedings under the ACT or these Rules shall be invalidated by any formal defect or by any irregularity unless the Court before which an objection is made to the proceeding is of the opinion that, injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that Court.”
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To accede to the Appellant’s request to treat the Petition and the verifying Affidavit, a nullity will amount to technicality as opposed to doing substantial justice.
This Court will not accede to the Appellant request. See GATEWAY HOLDINGS LTD V. STERLING ASSET MANAGEMENT 6 TRUSTEES LTD (2016) 9 NWLR (PART 1518) 490 AT 518 E – H TO 519 A – B per ABUBAKAR, JSC who said:-
“Construing Section 18(1) of the Companies Winding-up Rules in view of Section 15 (2)(a) of the Interpretation Act, it follows that the phrase “within four days after the petition is presented” would be interpreted to mean any other day within the four-day period, excluding the day on which the petition is filed. To this extent, filing the verifying affidavit on the same day the petition was filed runs afoul of the requirements of the Companies Winding-up Rules.
Is the petition then rendered a nullity on this ground? I will answer in the negative. In support of this stance, I refer to Rule 182(1) of the Companies Winding-Up Rules which provides as follows;
(1) “No proceedings under the Act or these Rules shall be invalidated by any formal defect or by any

irregularity, unless the Court before which an objection is made to the proceeding, is of the opinion that injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that Court.” (Italics mine)
It is evident that the qualifying condition as to the non – compliance with the provision of the Rules is that such non-compliance must hove caused injustice. The question to be asked then is whether the filing of the verifying affidavit on the same day the petition was filed caused any injustice to the appellant? Does it prejudice the interests of the appellant Company, so as to cause an injury that cannot be remedied? These questions must also be answered in the negative. The appellant has not been able to establish that any injury has been occasioned by the non-compliance by the respondent, and while it falls short of the Rules, it is to be treated as an irregularity which is not fatal to proceedings.”

Issue 2 is resolved against the Appellant.

Under issue 3, the Appellant also strongly submitted that before a Petition as in this case could be filed, the Petitioner must prove that he has

complied with Companies and Allied Matters Act by serving on the Appellant the Notice prescribed therein issued under the hand of the Petitioner (Respondent in this case) on the Respondent now Appellant demanding formally the payment of the debt due and giving the debtor 21 days to settle or liquidate the debt. That unless and until that is done any Petition filed in breach of Section 409(a) shall be incompetent and the Court seised of the Petition will lack jurisdiction to hear it. That no such Demand Notice was validly served on the Appellant. He relied on Exhibit ‘B’ contained on page 15 of the record. Section 409(a) of the CAMAsays:-
“409. A company shall be deemed to be unable to pay its debts if:
(a) A creditor by assignment or otherwise, to whom the company is indebted in a sum exceeding N2,000 then due has served on the company, by leaving it at its registered office or head office, a demand under his hand requiring the company to pay the sum so due, and the company has for three week, thereafter neglected to pay up the sum or to secure or compound for it to the reasonable satisfaction of the creditor.”

The lower Court held that demand letters had been properly sent to the Appellant and that Appellant admitted its indebtedness to the Respondent upon a community reading of Exhibits A, B, E, F and G.
The lower Court held as follows:-
“The Court has perused the written addresses and listened to arguments of parties and opines the Respondent is obviously in debt and has admitted so in the several meeting held between the parties. This is positively stated in Exhibits E, F and G as rightly submitted by the Petitioners Counsel.
Furthermore, in a winding up petition based on the ground of inability to pay debt the Petitioner must establish the following:
a. That there is a debt.
b. The debt is due.
c. There has been demand (statutory 21 days Notice)
d. The company has been unable to pay.
See Winding up of Companies @ page 671 Nigeria Companies and Allied Matters Law & Practice Volume 2 by Deji Sasegbon.
Exhibits A, E, F, G clearly show that there is a debt that is due and acknowledged by the respondent Exhibit B (attached to verifying affidavit) and Exhibit A (attached to further and better counter affidavit of petitioner) are demand letters.

Exhibits F clarifies any disputes as to the Respondents awareness of debt and inability to pay.”
I agree with the lower Court having read Exhibits B page 7 of the record, Exhibit “G” at page 103 of the record and Exhibit A on pages 201 – 203 of the record that those exhibits undisputedly show that the Respondent made necessary demands for payment of debt owed to it by the Appellant.
I am not unaware that the Appellant argued that Exhibit “B” page 15 of the record which is a letter of demand dated 24/8/07 was written by Solicitors to the Respondent Appellant had contended it is/was not in tandem with Section 409(a) of CAMA. I am of the view that all the letters of demands sent to the Appellant confirmed and complied with Section 409 of the CAMA. The Solicitors who wrote Exhibit B must be taken to have been appointed by the Principal Officers of the Respondent to act on behalf of the Respondent.
In any event, the Appellant wrote letter dated 28/8/2008 to the Respondent wherein the Appellant stated it wished to commence payment of outstanding liabilities but for some reasons it gave in the said letter Exhibit G page 103 of the record.

This is clear evidence of liability to the Respondent notwithstanding any disparity between paragraph 27 of the Petition which put the debt at N1,169,882,757.52 and $3,320,000.00 while Exhibit A on page 201 of the record stated the amount due as at the time the letter was written (5-12-2007) put the debt as $4,480,927.52 and N5,998,035.31.
There is nothing in Exhibit “G” disputing the amount paid in Exhibit “A”. Furthermore the letter Exhibit “G” written by Appellant on 28/8/2008 was responding to Respondent’s letter of demand for payment written on 20/8/2008. Head or tail the Appellant is not on solid ground in its complaint under issue 3. The letter of Demands were properly issued and served on the Appellant and they complied with the intendment of Section 409 of CAMA. See GATEWAY HOLDINGS LTD V. S A.M. & LTD supra pages 514E – H TO 515 A – C per my Learned Brother ABUBAKAR, JCA who said:-
“Appellant’s counsel also contended that the content of the letter of demand as per the notice of repayment foils short of the requirement of Section 409(a) of CAMA. That section provides as follows:
“A Company shall be deemed to-be-unable to

pay its debts if –
A creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding N2,000 then due has served on the company, by leaving it at its registered office or head office, a demand under his hand requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay up the sum or to secure or compound for it to the reasonable satisfaction of the creditor; …” (Italics mine)
It is obvious from the above provision of Section 409(a) that what is reckoned therein is not that the letter of demand must give three weeks’ notice. Far from it! A literal construction of the clear and unambiguous provision of the Act shows that, the extent of notice in the letter of demand is immaterial; what is mandatory therefrom is that such debtor company must have neglected to pay up the sum being owed or compound for it to the reasonable satisfaction of the creditor for three weeks from the delivery of the letter of demand. Consequently, a combined reading of Section 406(b) and 409(a) of CAMA well lead to the conclusion that a company can only be said to be unable to pay its debt and liable to be

wound up if it is indebted in a sum exceeding N2,000 and such debt has become due and the debtor company had neglected for three weeks after the demand for payment was made to pay for such debt as provided under the Act. Therefore, I must say that the contention of the appellant’s counsel that the respondent’s did not comply with the above-referenced provision of CAMA is misconceived and contrary to the clear provision of the Act. Any interpretation to the contrary will lead to manifest absurdity.”
Issue 3 is hereby resolved against the Appellant.

Under issues 4 and 6 the Appellant stated that relief sought in a Winding Up proceedings is not one for recovery of debt or breach of contract but rather to Wind Up the Company for inability to pay its debt. That it is also not in place to put pressure on a Company to pay disputed debt.

According to the Appellant the debt in question is being hotly contested as deposed to en paragraph 4 to 39 of the AFFIDAVIT IN OPPOSITION TO PETITION.

There is no letter or document showing a contrary position to what the Appellant stated in its letter of 28th April, 2008 giving reasons why it was unable to settle

the debt and not that Appellant is not owning the Respondent and Exhibits ‘F’ and ‘G’ attached to the Petition support the findings of the lower Court.

Another point raised is that even if the debts alleged exit, they are statute barred.

The same issue of statute was partly raised under issue 4 and is also the subject of issue 5 where the Appellant states:-
“At pages 211 – 212, the lower Court reviewed the arguments of the parties founded on Section 26(1) of the National Insurance Corporation Act to the effect that the claims of the Petitioners are statute barred.”

I will conclude on issues 4 and 6 before returning to deal with whether the Respondent’s action is statute barred.

Suffice to say that all issues raised under issues 4 and 6 dealing with whether there was a valid insurance contract or whether the contract is illegal have to do with whether there is a reasonable cause of action and not about the vires or powers of the lower Court to entertain the Petition. They core issues to be dealt with at the hearing of the Petition if it is found that the Petition is not caught by limitation law.

The question may be asked if

there is no valid contract or there is illegality in the insurance contract between the parties how come the correspondences between the parties talking of settlement of indebtedness and or liabilities and obligations? As I said these heads of complaints about contesting debts or payment of premium or lack of it have nothing to do with the lower Court’s jurisdiction.

No illegality is apparent on the face of the Petitioner’s Petition. Cause of action can only be found in a Plaintiff pleading and jurisdiction is determinable on the Plaintiff (Petitioners) pleading and not on the Defence. See ALHAJI A. IBRAHIM V. MR FELA OSIM (1988) LPELR- 1403 (SC) 1 AT 23 B – E per OBASEKI, JSC.

I also adopt my reasoning and conclusion under issues 2 and 3 to resolve issues 4 and 6 against the Appellant.

Now to issue as to whether the Petition as predicated is statute barred? Section 26(1) of NICON ACT states:-
“Notwithstanding anything in any other enactment, no suit against the Corporation, a director or servant of the Corporation for any act done in pursuance or execution or intended execution of any enactment or law or of any public duties or authority,

or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authorities shall lie or be instituted in any Court, unless it is commenced between months next after the act, neglect or default complained of or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.”
The Appellant’s learned Counsel also complained that the issue was glossed over by the lower Court. I can say that the lower Court amply considered the issue relating to Section 26 of NICON ACT on pages 211- 213 of the record.
The Appellant apart from complaining that the issue relating to Section 26(1) of NICON ACT was not thoroughly considered, it did not show in what respect Section 26(1) of NICON ACT is made applicable to the Appellant, a Privatize Limited Liability Company under CAMA.
I am of the view that Section 26(1) of NICON ACT is not applicable. The applicable limitation law is the Limitation Act Cap. L 69, LFN Section 38 thereof.

The Appellant had by its letter of 28th August acknowledged that it ought to have commenced the payment of its liabilities (debt) to the Respondent,

Paragraph one of the said letter states:-
“We acknowledge the receipt of your letter dated 20th August, 2008; highlighting non receipt of your claims settlement cheques as promised in our earlier letter on the above subject and wish to comment as follows: –
…”
Paragraph 3 and 4 of the letter stated:-
“Ordinarily, we as a management would have wished to commence the payment of outstanding liabilities a part of which the N17.3 Billion injection was meant but for the insurance of National Insurance Commission (NAICOM) to move the funds Into a non-interest yielding account in CBN.
This has drawn us back on our promise to your organisation to commence payment of your outstanding claims…”

The letter Exhibit “G” is a direct acknowledgment that Appellant was owing the Respondent some monies. The law of limitation will not be made applicable to recovery of debt where the debt is acknowledged by the debtor thus reviving the right of the Creditor to sue the Debtor. The right of action accrued on August 2008 and this action which was instituted on 20th June, 2011 is not caught by any limitation law. See:-

N.S.I.T.F.M.B V. KLIFCO NIGERIA LTD (2010) 13 NWLR (PART 1211) 315 AT 329C – 330F per CHUKWUMA-ENEH, JSC who said:-
“However, where there is acknowledgment of debt, which must be an writing signed by the party that is liable, the right to recover the debt by action is revived and what constitutes acknowledgment in such cases is a matter of fact in each case, if I may repeat. In other words, what constitutes acknowledgment will depend on the construction placed on the words by the Court in ascertaining what the words mean. See Spencer V. Henunerde (1922) 2 AC 507 at 526: Thadani & Anor V. National Bank of Nigeria Ltd. (supra). As rightly held in the Spencer case (supra) at p. 526, the question is “what the debtor’s words mean; and not what he meant when he wrote them”. Thus making the debtor’s motive for the acknowledgment most irrelevant in the matter. The defendant has inter alia alleged that the revived debt me this matter, not having been quantified, that further agreement will be required an so that the alleged acknowledgment, if at all, as per Exhibit “J” is sufficient to revive the debt. Let me observe pre-emptorily, that I take the view that the quantification in

figures of the outstanding amount of the debt is capable of ascertainment by mere calculation without further evidence.
I must recapitulate that this being a simple debt, the period of limitation is 6 years. What seems to emerge from the opposing contentions of the parties here is whether by the above underlined phrase i.e. the acknowledgment as in the extract of Exhibit “J”, it is a sufficient and clear acknowledgment of the defendant’s indebtedness that a promise to pay is inferable from it and so take this matter outside the operation of the limitation law. See Ajike V . Cardoso (1939) 5 WACA 134.
I have above set out an abstract of Exhibit “J” – the acknowledgment letter from the defendants and to observe that the Court has to satisfy itself that by construing the words from the acknowledgment letter. It can be inferred as a matter of fact if I may come again, a promise by the debtor to pay the debt. By a long line of decided cases, acknowledgment of debt owed to a creditor has to be unconditional and unequivocal. The words used by the debtor to recognize the existence of the instant debt are “that our

computation of our indebtedness differs from yours…“ These words having been construed in the context of the letter couldn’t be more absolute and unconditional as to the acknowledgment of indebtedness of the defendant to the plaintiff, nothing could be more positive than the said phrase i.e. underlined words in acknowledging of the said debt. There is no doubt of their being absolutely and unconditionally unequivocal on the indebtedness. It is not required, as espoused in many cases, that the precise amount i.e. figures of the debt, must be stated, in this case, in Exhibit “L” and as I said above, the amount here is ascertainable without any difficulty and without further evidence. In Mike V. Cardoso and Anor (supra) this point has been highlighted and if I may restate it has held that it is not necessary to set out the precise amount of the debt. See also Thadani & Anor V. National Bank of Nigeria Ltd. (supra). Having carefully considered this case, there is no doubt in my mind that Exhibit “J” having satisfied the requirements (have adumbrated above, is an absolute and unconditional acknowledgment of indebtedness by

the defendant to the plaintiff as per the claim and that in consequence thereof has taken the instant suit out of the Limitation Act.”
2. A. G. ADAMAWA STATE & ORS V. A. G. FEDERATION (2014) 14 NWLR (PART 1428) 515 AT 554 C – H TO 555A per PETER-ODILI, JSC who said:-
“It is clear from the above stated statutory provision of the Limitation Law that the cause of action had come full blown by the 27th July, 1983 when the defendant acknowledged the indebtedness. Therefore, the subsequent correspondences which climaxed on 6th August, 2010 including that of August, 2007 would not add to or subtract from the event which had already taken place, that is, the crystallisation of the cause of action which took place on 27th July, 1983. This happening would bring about the attendant fall out which is the operation of Section 7(1 )(e) of the Limitation Act. Therefore, what had been restated in Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at pp. 20-21 , paras. H-A would apply and these are:
“where a party’s action is statute-barred, the following legal consequences will follow:
(a) the party would lose his right of action;

(b) the party would lose the right of enforcement;
(c) the party would also irretrievably lose the right to judicial relief:
(d) the party would only have an empty cause of action which no Court will assist him to enforce.”
See also Daudu V. University of Agriculture, Makurdi & 4 Ors. (2002) 17 NWLR (Pt. 796) 362 at 384 – 385.
For effect, I shall cite the provisions of the said Section 7 of the Limitation Act and it is as follows:
“7(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued –
(e) actions to recover a sum recoverable by virtue of an enactment other than –
(i) a penalty or forfeiture or sum by way of penalty or forfeiture;
(ii) a sum due to a registered company by a member thereof under its articles of association.
(iii) an amount recoverable against concurrent wrong doers under a civil liability enactment for the time being in force relating to concurrent wrong doer.”
3. THADANI & ANOR V. NATIONAL BANK OF NIGERIA (1972) LPELR – 3147 SC 1.
“In arguing the appeal, learned counsel on both sides

referred the Court to a number of authorities and invited our attention to various dicta of Judges as to what constitutes an acknowledgement for the purpose of the Statutes of Limitation.
We cannot but confess that the matter is not free from difficulty and whilst a Tribunal faced with the construction of a document for this purpose will have to decide as a matter of law whether the document could constitute an acknowledgement, the issue whether it does so or not is a matter essentially of fact. In Spencer V. Hemmerde (1922) 2 AC. 507 at p. 534, Lord Sumner summarised the position as follows: –
“The decisions on the exact meaning and effect of the precise words employed by generations of shifty debtors are, it is agreed on all hands, irreconcilable.
It may, perhaps, serve in some degree to mitigate the appearance of hopeless contradiction if the theory, on which the decisions have gone, can, to some extent, be unified. I do not think it has been as self-contradictory as is generally supposed. The restoration lawyers, no doubt, were brought face to face with two things: a multitude of debts still unpaid but long irrecoverable owing to the

Civil War, and a statute, which, in terms, left the creditor without remedy. When first new promises and acknowledgements came into recognition, and why, we do not know, but ultimately it became necessary to invent an explanation where a simple and existing rule of practice had to be extended to complex cases.”
Before us, it was not contended that Exhibit “C” could not constitute an acknowledgement; what learned counsel for the defendants said was that it does not. On the other hand, learned counsel for the plaintiffs contended that taken along with Exhibit “O”, an acknowledgement of the debt is clearly inferable. Section 3 of the Statutes of Limitation, 1623, provides, so far as is material to this case, as follows: –
“3. And … all actions of trespass, quare clausum fregit, all actions of trespass, detinue … all actions of debt grounded upon any lending or contract without specialties, all actions of debt for arrerages of rent … shall be commenced and sued within the time and limitation hereafter expressed, and not after (that is to say the said action upon the case (other than for slander) and the said

actions for accompt and the said actions for trespass, debt, detinue within three years next after the end of this present session of Parliament, or within six years next after the cause of such actions or suit, and not after…”
The principle of acknowledgment or part-payment is founded on the theory that by so doing the debtor establishes a fresh contractual relationship so that a cause of action then starts to run from the date of the fresh contractual relationship.”

Issue 5 is thus resolved against the Appellant. Since issue 1 was not argued by the Appellant’s learned Counsel, the same issue 1 is struck out and corresponding Ground 1 of the Amended Notice of Appeal from which the issue was formulated is also struck out.

Consequently, the Appellant appeal lacks merit and the Appellant’s appeal is hereby dismissed in its entirety.

The Ruling of the Federal High Court (Coram ADENIYI ADEMOLA – J) delivered on 24th April, 2015 is hereby affirmed.

The Appellant shall pay N250,000.00 (Two Hundred and Fifty Thousand Naira) as costs to the Respondent.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading in advance

the judgment just delivered by my learned brother Peter Olabisi Ige, JCA.

I entirely agree with the opinion expressed and the conclusion arrived at, that the appeal lacks merit and is accordingly dismissed.
I abide by the consequential order(s) as contained in the therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA.
I agree with the reasoning, conclusions and orders therein.

Appearances:

AKINSOLA OLUJIMI, ESQ., with him, OLUSEJI A. ABIOLA, R. BALOGUN, BABAGBEMILEKE ODUGBESAN and BECKY IZIOMA DIKE For Appellant(s)

B. WAHAB For Respondent(s)